United States of America v. Javon Johnson

November 14, 2012

UNITED STATES OF AMERICA, PLAINTIFF,v.JAVON JOHNSON, DEFENDANT.

The opinion of the court was delivered by: Judge John W. Darrah

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant's Motion to Suppress. Defendant is charged in seven counts of the superseding indictment with violations of 21 U.S.C. §§ 841(a)(1), 843(b), and 846. Defendant seeks to suppress two categories of statements made by Defendant to a Drug Enforcement Agency ("DEA") Agent on June 21, 2011: (1) a pre-Miranda statement made by Defendant, after Defendant's arrest, while Defendant was held in the DEA Agent's vehicle, and (2) post-Miranda statements made by Defendant to the DEA Agent at a Chicago Police Department ("CPD") facility during questioning. An evidentiary hearing was held on August 28, 2012, and the parties thereafter submitted position papers. At the evidentiary hearing, DEA Agent Patrick Bagley and Assistant U.S. Attorney Sheri Mecklenburg provided testimony.

BACKGROUND

The following is based on the evidence presented at the suppression hearing and from the parties' written submissions. On June 16, 2011, Magistrate Judge Mason approved a criminal complaint, charging Defendant, among others, with violations of the Controlled Substances Act, 21 U.S.C. § 801 et seq. (Dkt. No. 2, United States v. Acevedo-Fitz et al., No. 11-cr-416.) On June 17, 2011, Magistrate Judge Mason issued a warrant for Defendant's arrest. (Id., Dkt. No. 4.) On June 21, 2011, CPD arrested Defendant at his sister's home at 11242 S. Homewood in Chicago, Illinois, and advised Agent Bagley of Defendant's arrest. Subsequently, Agent Bagley arrived at the scene. Agent Bagley showed Defendant a copy of the arrest warrant. Defendant was placed in the rear seat of Agent Bagley's vehicle; Agent Bagley was seated in the driver's seat. Agent Bagley testified that he did not subsequently ask Defendant any questions in the vehicle. Agent Bagley also testified that he did not advise Defendant of his Miranda rights because he did not intend on asking Defendant any questions.

At the time of the arrest, Defendant asked why he was being arrested, and Agent Bagley said he did not know and only knew that he had a warrant for Defendant's arrest. However, when Defendant was placed in the police vehicle, Agent Bagley inserted a CD into the vehicle's CD player; the CD contained the recordings of five intercepted telephone calls between Defendant and another individual. In the recorded phone calls, Defendant and a co-conspirator can be heard discussing arrangements for drug deals. Agent Bagley testified that Defendant, after hearing the recording, unprompted, stated: "I shouldn't have fucked with that motherfucker. He's the police." Agent Bagley testified that he did not respond to Defendant's comment or ask Defendant any questions.

At the police station, Agent Bagley replayed the CD for Defendant at Defendant's request. After hearing the CD, Defendant responded that he may have information about homicides that could relate to the Government's investigation. Agent Bagley testified that he also asked Defendant to identify the other individual speaking on the CD, interviewed Defendant regarding items found during Defendant's arrest at his sister's home, and asked Defendant to identify an individual in a photo booklet. Defendant identified the individual as "Gambino" and added, "That's my guy." The interview concluded when Defendant said he did not want to answer any further questions.

ANALYSIS

As the Seventh Circuit recently explained, statements by a defendant must be preceded by the Miranda warnings if they are the product of a custodial interrogation:

Miranda held that the government may not use statements stemming from the custodial interrogation of a defendant unless the government has utilized procedural safeguards effective to secure the privilege against self-incrimination. . . . The privilege against self-incrimination is not imperiled by every conversation with the government. Instead, the concern in Miranda was with the inherently coercive nature of custodial interrogation. Accordingly, a suspect must be both in custody and subjected to interrogation before Miranda warnings are required.

U.S. v. Ambrose, 668 F.3d 943, 954 (7th Cir. 2012) (Ambrose).

Defendant's Pre-Miranda Statement

The Government concedes that Defendant was in custody following his arrest at his sister's residence. (Gov't's Br. at 3.)

Defendant moves to suppress the statement he made to Agent Bagley after Agent Bagley played a recording of telephone calls in Defendant's presence while Defendant was held in Agent Bagley's vehicle. Defendant argues Agent Bagley's conduct was the functional equivalent of interrogation but that Bagley failed to advise Defendant of his right against self-incrimination, as required by Miranda v. Arizona, 384 U.S. 436 (1966) (Miranda). The Government disputes that Defendant was subject to an interrogation or the functional equivalent of an interrogation when Agent Bagley ...

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